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MINORITY  REPORT 

OF    THE 

COMMITTEE  ON  ELECTIONS. 


The  undersigned,  members  of  the  Committee  on  Elections,  to  whom 
were  referred  the  petition  of  the  Hon.  J.  P.  Johnson,  "claiming  the 
seat  in  the  House  as  the  representative  from  the  third  district  in  the 
State  of  Arkansas,  and  asking  that  he  be  permitted  to  contest  the  seat 
of  the  sitting  member,  Hon.  A.  H.  Garland,"  differing  from  the  ma- 
jority of  the  committee,  beg  leave  to  present  this  minority  report. 

At  the  last  session  of  Congress  a  majority  of  the  committee  recom- 
mended the  adoption  of  the  following  resolutions : 

1st.  Resolved,  That  thirty  days  be  allowed  the  contestant  to  amend 
his  notice  if  he  so  desire. 

2nd.  That  the  sitting  member  be  allowed  thirty  days  after  such 
amendment  is  made,  and  notice  thereof,  or  after  notice  of  contestants 
declining  to  amend,  in  which  to  make  and  serve  his  answer  thereto 
on  contestant,  setting  out  in  said  answer  the  grounds  on  which  he  rests 
the  validity  of  his  own,  and  denies  the  election  of  contestant. 

3rd.  That  after  service  of  the  answer  or  expiration  of  the  time 
limited  therefor,  sixty  days  be  allowed  the  parties  to  take  evidence, 
which  shall  be  confined  to  the  allegations  and  denials  contained  in  the 
answer  and  notice,  and  that  the  same  be  taken  and  transmitted  to  the 
House  under  the  rules  prescribed  by  the  act  of  Congress  of  the  United 
States,  approved  February  19th,  1851,  entitled  "An  Act  to  prescribe 
the  mode  of  obtaining  evidence  in  cases  of  contested  elections." 

A  minority  of  the  committee  also  made  a  report  and  recommended  the 
adoption  of  the  following  resolution :  Resolved,  That  the  Hon.  J.  P. 
Johnson  is  duly  elected  representative  from  the  Third  Congressional 
District  of  the  State  of  Arkansas,  and  as  such  is  entitled  to  the  seat 
in  this  House  as  the  representative  from  said  third  district."     This 

resolution  was  rejected  by  a  vote  of  in  the  affirmative,  and 

in  the  negative. 

The  House  thereupon  adopted  the  resolutions  reported  by  the  ma- 
jority of  the  committee,  which  in  effect  postponed  the  case  for  future 
proof  to  be  taken  under  certain  rules,  allowing  the  parties  the  privi- 
lege of  amending  their  pleadings,  if  they  so  decided.  It  will  at  once 
be  perceived  by  an  examination  of  the  report  of  the  committee   that 


•  [>.>  not  attempt  to  decide  the  question,  which  at  last  mu>t  control 

the  action  of  the  House,  namely  : 

"  Did  contestant  or  the  sitting  member   receives   plurality   of  the 

vote?  cast  at  said  election."  indeed,  the  intimation  is  pretty  clear  from 
the  whole  tenor  of  the  report,  in  the  opinion  of  the  committee,  that 
contestant  had  been  elected,  bnt  had  failed  to  show  it  by  the  highest 
grade  of  evidence  of  which  the  ease  was  BUSCeptible  and  therefore  time 
was  granted  to  obtain  the  proof. 

Immediately  after  this  action  on  the  part  of  the  House,  to-wit  :  on 
the  5th  of  April,  the  contestant  availing  himself  of  the  privilege 
granted  him.  amended  his  notice,  in  which  in  precise  and  apt  allega- 
tions he  acquaints  the  sitting  member  of  the  grounds  relied  on  for  con- 
testing his  seal.  A  copy  of  this  notice  was  served  on  defendant  the  same 
day.  The  sitting  member  failed  or  neglected  to  have  a  copy  of  his 
answer  served  on  the  contestant  within  the  time  prescribed  by  the  res- 
olution of  the  last  session,  and  the  notice  of  the  contestant  as  origi- 
nally given,  and  as  amended,  remain  unanswered  to  this  time.  No 
excuse  or  apology  was  offered  at  the  last  session  by  the  defendant  for 
his  failure  to  answer  the  original  notice,  unless  it  be  found  in  his  ob- 
jection to  its  sufficiency. 

The  objection  to  this  notice  was  overruled  by  the  committee,  and 
doubtle:s  the  defendant  would  have  then  been  given  an  opportunity  of 
answering  had  he  asked  leave  to  do  so. 

The  committee,  in  their  report  at  this  session,  state  that  the  defend- 
ant "  upon  his  return  to  Arkansas  prepared  his  answer  now  before  the 
committee,  a  copy  of  which  he  sent  to  the  sheriff  of  Desha  county,  the 
residence  of  Mr.  Johnson,  with  instructions  to  deliver  the  same  to 
him.  This  was  not  done,  and  for  his  failure  to  do  so  the  sheriff  return- 
ed the  paper  with  the  following  endorsement: 

"  Came  to  hand  April  27th,  1862. 

S.  C.  Clayton,  Sheriff. 

"  Not  executed  on  account  of  Jilson  P.  Johnson  being  absent  from 
my  county,  May  27th,  1862. 

S.  C.  Clayton.  Sheriff." 

The  impression  left  upon  the  mind  from  reading  this  part  of  the  report 
would  be  that  the  contestants  absence  from  his  county  was  the  cause 
of  the  failure  of  the  defendant  to  have  his  answer  served,  and  yet  the 
fact  is  we  have  the  concurrent  written  testimony  of  both  contestant 
and  defendant,  that  the  former  was  at  home  during  the  entire  time 
within  which  the  answer  was  to  be  served.  iSee  amended  petition  of 
contestant  and  written  statement  of  facts  of  defendant. 

What  the  committee  mean  in  their  report  by  saying  the  answer  of 
defendant  to  the  amended  notice  is  "now  before  the  committee"  we 
are  at  a  loss  to  conjecture.  If  it  is  meant  to  say  it  is  or  was  before  the 
committee  in  the  legal  character  of  a  response  or  answer,  we  must  be 
permitted  to  s%y  we  did  not  so  understand  the  action  of  the  commit- 
tee, upon  the  contrary  we  understand  it  as  ruled  out  of  the  case  for 
all  legal  purposes,  other  than  as  tending  to  show  an  effort  on  the  part 
of  defendant  to  answer  in  time. 


The  amended  notice  then  remains  unanswered  and  by  no  fault 
contestant.  Indeed,  the  defendant  has  not  even  asked  permission  to 
file  his  answer  nunc  protunc,  but  stakes  his  defence  entirely  upon  the 
ground  that  contestant  has  failed  in  his  proof. 

The  question  arises  what  legal  effect  follows  from  the  failure  to  an- 
swer ?  The  notice  and  answer  constitute  the  pleadings  in  this  case, 
under  the  Act  of  Congress  governing.  Why  does  the  law  require 
contestant  to  give  the  sitting  member  notice  in  writing  of  his  intention 
to  contest  the  seat?  Obviously  that  defendant  may  know  the  ground 
relied  on,  so  that  when  he  answers  he  may  force  an  issue  to  be  tried 
by  traversing  the  allegations  of  the  notice,  or  may  confess  them  and 
set  up  another  in  avoidance.  The  whole  office  of  all  pleading  is  to 
form  an  issue,  to  be  tried.  If  the  defendant  fails  to  answer,  contro- 
verting the  allegations  of  the  contestant,  there  is  no  issue  to  try. 

The  well  established  rule  of  pleading,  universal  in  its  application. 
is.  that  all  material  allegations  must  be  regarded  as  admitted  until 
denied.  The  material  allegation  of  the  notice  is,  that  contestant  re- 
ceived a  plurality  of  eight  votes  in  the  District.  It  is  not  denied — 
must  it  not  be  taken  to  be  true  ?  Does  not  every  rule  of  pleading 
known  to  the  books,  as  well  as  every  rule  of  logic  known  to  the 
logician,  require  it  to  be  regarded  as  established?  If  taken  as  true, 
what  judgement  shall  the  House,  acting  here  as  it  does  in  a  quasi 
judicial  character, render ?  We  insist  it  is  compelled  to  decide  against 
the  right  of  the  sitting  member  to  the  seat.  This  consequence  must 
follow,  unless  every  rule  of  pleading  and  logic  Is  set  at  defiance.  In 
deciding  that  the  sitting  member  is  not  legally  entitled  to  the  seat,  it 
by  no  means  follows  that  the  contestant  is.  The  judgment  that  ousts 
the  sitting  member  is  one  thing,  the  judgment  that  gives  the  seat  to 
the  contestant  is  essentially  a  different  thing.  Each  House  has  the 
exclusive  right  of  judging  of  the  qualification,  election,  and  virtues 
of  its  own  members,  and  therefore,  he  who  claims  a  seat  must  not 
rely  upon  the  weakness  of  the  title  of  some  other  claimant,  but  must 
show  he  is  entitled  to  it  by  affirmative  proof. 

In  the  opinion  of  the  undersigned,  the  failure  to  answer  the  origi- 
nal and  amended  notice  in  this  case,  must  have  the  effect  of  depriving 
the  sitting  member  of  his  seat,  even  in  the  absence  of  proof,  but  would 
not  have  the  effect  of  giving  the  seat  to  the  contestant. 

It  will  be  perceived  by  examination  of  the  notice  in  this  case,  that 
the  substantive  charge  is.  that  there  was  a  mistake  to  the  prejudice 
of  contestant,  in  making  out  the  abstract  of  the  vote  of  Arkansas 
County  by  the  Clerk,  Justice  and  householder,  that  was  forwarded  to 
the  Governor,  and  upon  which  he  acted  in  granting  the  certificate  of 
election,  which,  when  corrected,  shows  he  was  elected   by  eight  votes. 

To  support  this  allegation,  the  contestant  offered  in  evidence,  copies 
of  the  poll  books  from  each  township  or  voting  precinct  of  Arkansas 
County,  certified  by  the  Clerk  of  said  County  under  seal  of  office,  to 
be  correct  transcripts  from  the  originals,  as  they  remain  on  file  in 
his  office.  This  evidence  was  rejected  by  the  Committee,  because  in 
their  opinion  the  same  was  improperly  authenticated. 

In  support  of  their  view,  the  House  is  referred  to  the  Act  of  Con- 


ol 


gresa  relating  to  contested  elections,  and  the  Act  of  March  27.  180  I. 
re  at  a  loss  to  see  the  application  of  either  to  the  ease  before  the 
House.     The   Act   respecting   contested  elections,  is  merely  cumula- 
tive, and  whilst  it  prescribes  one  mode  of  taking  testimony  in  cases 

of  contested  elections,  does  not  at  all  interfere  with  the  well  estab- 
lished rule-  <>f  evidence  as  recognised  by  the  common  law,  or  by  the 
statutes  of  the  several  States.  The  statute  referred  to,  as  well  as  the 
rule  laid  down  by  the  House  at  the  last  session,  applies  only  to  the 
case  where  an  answer  has  been  served  in  time.  Such  is  the  express 
language  of  the  statute  and  the  resolution  of  last  session.  Indeed 
the  statute  does  not  provide  for  taking  testimony  where  there  is  no 
answer,  for  the  obvious  reason  that  in  the  contemplation  of  the  law 
makers,  no  proof  in  such  case  would  be  required,  and  such  we  take  to 
have  been  the  sense  of  this  House  from  the  language  employed  in  the 
resolution  of  last  session.  The  Act  of  March  27,  1804,  relates  ex- 
clusively to  Courts,  technically  speaking,  and  provides  for  procuring 
and  authenticating  record  evidence  of  one  State  to  be  used  in  evidence 
in  the  Courts  oi  another  or  sister  State.  Now  we  respectfully  sub- 
mit that  this  House  is  not  a  Court,  and  especially  it  is  not  a  Court  of 
one  of  the  States  composing  this  Confederacy.  The  statutes  of 
Arkansas  provide  for  the  introduction  as  evidence  of  office  copies  from 
the  records  of  one  Court  in  any  other  Court  within  the  State,  when 
certified  by  the  Clerk  under  seal  of  his  office.  Why  shall  the  evi- 
dence be  digested  here?  Admit  this  evidence  and  the  election  of  the 
contestant  is  demonstrated.  With  conclusive  evidence  befoi'3  us,  that 
the  contestant  was  elected,  we  cannot  but  regard  the  retention  of  the 
seat  by  the  sitting  member,  as  a  flagrant  disregard  of  the  rights  of 
the  electors  composing  the  District,  as  well  as  the  rights  of  the  con- 
testant. Whereupon,  we  recommend  the  following  as  a  substitute  for 
the  resolution  of  the  Committee : 

Resolved,  That  Hon.  Jilson  P.  Johnson,  is  duly  elected  Representa- 
tive from  the  Third  Congressional  District  of  Arkansas,  and  as  such, 
is  entitled  to  his  seat  in  this  House. 

JNO.  W.  CROCKETT, 
JAMES  B.  DAWKINS, 
G.  G.  VEST. 


Hollinger  Corp. 
pH8.5 


